Apr. 17, 2013 - 07:58PM
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The Marine Corps is blaming an “internal communication error” for failing to notify media it has begun criminal proceedings against the only officer to be charged in one of the most publicized incidents involving U.S. troops in Afghanistan.

An Article 32 hearing, the military equivalent of a grand jury, was held April 10 at Camp Lejeune, N.C., for Capt. James Clement, the former executive officer of Kilo Company, 3rd Battalion, 2nd Marines. A team of scout snipers assigned to the unit filmed themselves urinating on the bodies of dead Taliban fighters during a 2011 deployment to Helmand province.

Clement is the seventh Marine to face disciplinary action in connection with the video, which created enormous backlash at home and in the war zone, embarrassed the Marine Corps' senior leadership, and prompted its top general to tour the service preaching the importance of ethical behavior.

Media were alerted Wednesday that Clement's hearing took place a week prior. Col. Sean Gibson, a spokesman for Lt. Gen. Richard P. Mills, who as the head of Marine Corps Combat Development Command has overseen each case, cited an “internal communication error” for the mix-up. Gibson declined to elaborate.

Guy Womack, a civilian defense attorney representing one of the enlisted Marines whose case is ongoing, told Marine Corps Times Clement's hearing had to be rescheduled to accommodate a training conflict with the investigating officer. He said he was surprised to learn it had been moved up and wished media were present for the sake of helping him prepare his case.

Womack, a retired Marine officer, worked as chief trial counsel at Camp Lejeune in the 1990s. Rescheduling hearings can be complicated, he said, adding that he believes the media was left out unintentionally.

“I don't see it as anything sinister,” Womack said. Still, “I would've thought that the public affairs notifications to the media would be uniform and would be the same for an officer accused as for enlisted.”

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Clement testified during his hearing April 10 along with three other Marines, Gibson said. An investigating officer must now recommend to Mills whether the case should proceed to court-martial. It's not immediately clear when that decision will be made.

Marine Corps Times requested audio recordings or written transcripts from Clement's hearing, but Gibson said those materials are not releasable until after any possible appeal may take place.

Reached Wednesday, Clement's civilian defense attorney, John Dowd, declined to comment, saying only that the officer's legal team is awaiting the investigating officer's recommendation.

The urination video was filmed July 27, 2011, in Sandala. As the company's executive officer, Clement would have been responsible for supervising the Marines depicted in it.

To date, three enlisted Marines have received nonjudicial punishment for their roles in the incident, and two others were court-martialed and busted down in rank from staff sergeant to sergeant.

In March, an Article 32 hearing was held for Sgt. Robert Richards. It was revealed then that the urination video was one of many made that day showing Marines behaving inappropriately.

In one of the other videos, Richards is seen running up to a 10-foot wall and throwing a grenade over it. Prosecutors allege the Marines never positively identified whether there were enemies — or civilians — on the other side.

In another, Richards can be heard directing his Marines to consider hostile “every military-age male” south of their position. Lt. Col. Christopher Dixon, then the battalion commander, testified during Richards' hearing that he questions whether someone at his rank could make such a declaration - let alone a sergeant.

Richards' case has been referred to court-martial, but a date has not yet been set, Gibson said.

Clement was accused of dereliction of duty, violation of a lawful general order, conduct unbecoming an officer, failing to supervise his subordinates and stop misconduct, and making false statements to the Naval Criminal Investigative Service. During his Article 32 hearing, the Marine Corps dropped several charges against the officer, Dowd said, including those accusing him of making false statements and dereliction of duty.

In each of the enlisted cases that went to an Article 32 hearing, media were notified and invited to provide coverage of the proceedings. Because Clement is the lone officer to be charged in the incident, there is the potential this miscommunication may give enlisted Marines the impression he is receiving preferential treatment, said Gary Solis, a retired Marine officer who served as a military judge and now teaches law at Georgetown University.

“Is the lance corporal … going to say, ‘Oh yeah, we get put up on nighttime TV news, but when it's an officer, there's no media?' ” he said. “Such forgetfulness has the potential to raise questions about officer-enlisted relationships, and it's completely unnecessary.”